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'Abuse of Law': J&K HC Calls 2018 FIR Against Journalist 'Unique Method of Silencing' Press

The impugned FIR is nothing but an abuse of process of law and clearly reflects malafide on part of police, the court held.

Srinagar: The Jammu and Kashmir high court called an FIR registered against a journalist by police over a news report “nothing but an abuse of process of law” which “establishes malice” on part of the police.

The court observed that police chose “a unique method of silencing” the journalist who in 2018 had written an article on the torture of a man based on a version of the incident narrated to him by the man’s relative and which the police has contested.

Four weeks after the report was published, J&K police had booked the journalist under various sections of the Ranbir Penal Code (RPC) for the report, and claimed that he was trying to instigate the public to block roads and vandalise property.

Orders quashing of FIR

The J&K high court has ordered the FIR against Asif Iqbal Naik to be quashed. Naik is a resident of Kishtwar district and a news article by him was published on the Jammu paper Early Times, on April 19, 2018.

On May 12, 2018, Kishtwar police registered a case against Naik under sections 500, 504 and 505 of the RPC after seeking permission from authorities. The journalist later approached the J&K high court, seeking to quash the FIR against him. In the petition, he submitted that the case was filed to function as a gagging order and that police wanted to prevent him from publishing any news item against law enforcement.

Also read: ‘Kicked’, ‘Abused’: Police Attack Journalists Covering Muharram Procession in Srinagar

Naik also submitted that registration of an FIR against him “was an abuse of process of law”. He held that the “allegations in the FIR impugned are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there are sufficient grounds for proceeding against him.”

A single bench of Justice Rajnesh Oswal held that registration of the impugned FIR against the journalist is “undoubtedly an attack on the freedom of press”.

“The mode and manner in which the impugned FIR has been lodged clearly reflects the mala fide on the part of respondents as the respondents could have given their version by similar mode but they chose unique method of silencing the petitioner and it is undoubtedly an attack on the freedom of press,” the judge said.

“Needless to say that press is often referred to as the fourth pillar of democracy and freedom of the press is vital for the functioning of any democratic country like India. No fetters can be placed on the freedom of press by registering the FIR against a reporter, who was performing his professional duty by publishing a news item on the basis of information obtained by him from an identifiable source,” the judge further said.

Citing various judgments, the judge said that “the FIR impugned is nothing but an abuse of process of law”.

“Mere fact that FIR was lodged only against the journalist and not against the person who has disclosed the said incident to the journalist prima facie, establishes malice on the part of the respondents,” the judge said.

Representative image of policemen assaulting journalists in J&K. Photo: Sajad Hameed

The high court said that if the police was aggrieved by news report and had another version, they too could have resorted to the same mode, by getting their version published.

“This court is of the considered opinion that the publication of the news item on the basis of statement made by the cousin and brother of Akhter Hussain, does not amount to offence under section 499 RPC as the petitioner has been performing his professional duty of reporting the matter. More so, when the complaint was too filed against some of the respondents by the brother of the said Akhter Hussain on 19.04.2018, narrating the similar story. If the respondents were aggrieved of the same and they had some other version, they too could have resorted to the same mode, by getting published their part of version,” the court said.

Also read: Despite Reporting With ‘Utmost Honesty’, Threat of Arrest Looms Over Kashmiri Journalist

The court also held that the allegations made in the FIR do not even constitute as offence under section 504 of the RPC (intentional insult with intent to provoke breach of peace).

“So far as allegations with regard to commission of offence under section 504 RPC is concerned, there is no allegation that the petitioner has insulted any one thereby provoking him to break the public peace or commit any other offence. As such, uncontroverted allegations made in FIR do not even constitute offence under section 504 RPC,” the court observed.

While examining whether allegations under section 505 RPC can be made out against the journalist, the court observed that  “prima facie there is nothing in the FIR that the petitioner desired to generate the consequences as claimed by the respondents and rather, he has performed his professional duty”.

“The Hon’ble Supreme Court in Bilal Ahmad Kaloo vs. State of Andhra Pradesh, 1997 (3) Crimes 130 (SC), has held that mens rea is a necessary postulate for the offence under Section 505 IPC. Thus, mens rea is an essential ingredient of offence under section 505 RPC and as section 505 RPC provides a reasonable restriction on the fundamental right to freedom of speech and expression, therefore, the same is required to be strictly construed. The intention to generate the consequences as contained in section 505 RPC must be forthcoming from the plain reading of the statement/report or rumour and should not left at the discretion of a particular person. Prima facie there is nothing in the FIR that the petitioner desired to generate the consequences as claimed by the respondents and rather he has performed his professional duty,” the high court said.

It also highlighted that the news item was published on April 19, 2018 whereas the FIR against the journalist was registered on May 12, 2018 and till then no such offences as anticipated by the police were committed by the public.

Punish those who abused law: journalist

Talking to The Wire, Asif Iqbal Naik demanded action against those who have misused power. “Journalism is not a crime and journalists should not be treated as criminals for performing their professional duties,” he said.

When contacted, then Deputy Commissioner Kishtwar, Angrez Singh said that he cannot comment on the high court judgment. “I don’t remember this particular case,” he commented when asked if he had given permission for the case against the journalist.

Also read: Kashmir Journalists Confused, Worried by Police Warning Against Covering Gunbattles

Abrar Choudhary, who was then posted as district police chief of Kishtwar, said that due process of law is followed whenever an FIR is registered.

In its response submitted to the high court, the police claimed that Naik had published the story with the “criminal intention of instigating the peace-loving public of Kishtwar town and its vicinity” into unlawful assembly and cause offences like road blockades, vandalism and destruction of public property.

Police said that the man Naik had claimed was “tortured” had attempted to take his life after having been interrogated by police.

Since the reading down of Article 370 by the BJP-led Union government, journalists have often been summoned and questioned by J&K police and other agencies for critical reporting.

Journalist and author Gowhar Geelani and photojournalist Masrat Zahra were booked under the Unlawful Activities Prevention Act – the draconian law which is mostly used against militants and separatists in J&K.

Read the full J&K high court judgment below.

Asif Iqbal Naik v State of J K and Ors by The Wire on Scribd

Umer Maqbool is an independent journalist based in Kashmir.